Coleman v. The Hudson River Bridge Company.

The time from which the two years' limitation begins to run, is the date of the declaration and decree of bankruptcy, or, if the cause of action had not then accrued, two years after it had. The first clause of the limitation could apply only to adverse claims existing before the assignment, and the second applies to the same, but provides for the case where the right to institute the suit did not accrue till after the date of the decree. The limitation has no reference to suits growing out of the dealings of the assignee with the estate after it comes into his hands. These are matters for which he may be made personally responsible, and no reason existed for changing the general period of limitation any more than in the case of any other trustee dealing with trust property. There certainly could be no reason for applying the short term in favor of persons dealing with the assignee in respect to the estate of the bankrupt after it comes into his hands, and the statute makes the limitation mutual.

I am of opinion that the limitation in the 8th section of the statute does not apply to the case presented, and shall direct it to be so certified to the District Court.

FREDERICK W. COLEMAN

v8.

THE HUDSON RIVER BRIDGE COMPANY, AT ALBANY. IN

EQUITY.

ROBERT D. SILLIMAN vs. THE SAME.

Where a certificate of a division of opinion on the question of the jurisdiction of this Court to entertain a bill in equity, sent from this Court to the Supreme Court, is dismissed by that Court because of an equal division of opinion in that Court, and the mandate to this Court directs it to proceed in the cause in conformity to law and the rules and proceedings in such cases provided, it becomes the duty of this Court to enter a decree dismissing the bill.

Coleman v. The Hudson River Bridge Company.

From such decree, an appeal may be taken and the case be reviewed in the Supreme Court, the same as if the decree were pronounced by the judgment of this Court.

A provisional injunction granted on the filing of the bill falls with the dismissal of the bill.

The provisions of the Acts of September 24th, 1789, (1 U. S. Stat. at Large, 85, § 23,) and March 3d, 1803, (2 Id., 244, § 2,) do not operate to continue such injunction.

(Before NELSON and HALL, JJ., Northern District of New York, July 17th, 1862.)

THESE cases came before the Court on a motion by the defendants to file the mandate from the Supreme Court, on its decision reported in 1 Black, 582, and to enter decrees dismissing the bills of complaint. The counsel for the plaintiffs asked the Court to so modify the decree of dismissal as to retain the provisional injunction heretofore granted (4 Blatchf. C. C. R., 74,) and prevent the erection of the bridge until after the decision of the Supreme Court on an appeal from the decree of dismissal.

NELSON, J. On the hearing of this case on its merits, in this Court, before the two judges, a division of opinion upon the question of jurisdiction occurred, (4 Blatchf. C. C. R., 395,) which made it necessary, under the Act of Congress, to certify such division to the Supreme Court. That Court, after argument, were also equally divided in opinion, and, as a consequence, the certificate of division was dismissed, and the cause was remitted to the Court below, with directions to proceed therein in conformity to law and the rules and proceedings in such cases provided. According to these rules. and proceedings, and in conformity with law, as was intimated. by the appellate Court on the dismissal of the certificate of division, it becomes the duty of this Court to enter a decree dismissing the bill, the same principle applying to the case in this Court as in the appellate Court, in case of a divided opinion. From the decree thus resulting, an appeal may be taken, and the case be reviewed in the Court above, the same as if the decree were pronounced by the judgment of the Court.

Coleman v. The Hudson River Bridge Company.

It is contended, however, that, conceding this view to be correct, it does not follow that the injunction heretofore granted falls with the dismissal of the bill, or, if it does prima facie, that it is still in the power of this Court to continue the injunction until the decision on the appeal, and that the case is a proper one for the exercise of this power. The Court cannot agree to either of these positions. The legal result of the division of opinion of the judges, is a dismissal of the bill without any qualification. Indeed, the condition of the Court renders any qualification or modification of the dismissal impracticable. The case is out of Court, so far as it respects any proceedings except an appeal to revise the decree. The judges are disabled, from the contrariety of opinion, to annex any condition, and it certainly requires no argument to show that, in the case of an unqualified dismissal of a bill, all the incidents fall with it. We agree that the Chancellor may, in his discretion, direct a modified dismissal, and thereby annex to it such conditions as may seem to him just and equitable. Having the possession and entire control of the cause, this qualified exercise of power is practicable. But such a case is very different from this one, where the dismissal is the result of law, and absolute, and where, from the condition of the Court, no modification can be annexed.

It was insisted, that an appeal, when taken within the time and in the mode prescribed by the Acts of Congress of September 24th, 1789, (1 U. S. Stat. at Large, 85, § 23,) and March 3d, 1803, (2 Id., 244, § 2,) will operate, under and by virtue of those Acts, to continue the injunction. But it is quite clear that these provisions deal only with the writ of execution founded upon the decree rendered, and which is awarded by it, and have no application to the provisional writ of injunction or other incidental proceedings in the progress of the cause.

It may not be improper to add, in conclusion, that this question was the subject of observation in the course of the discussion of the main questions of the case, in the Court above, and that no doubt was entertained in regard to it by

any

Williams v. The Mechanics' Bank of New Haven,

of the judges. Although the question had not been discussed by counsel, it became incidentally involved, on account of the division of opinion in the appellate Court. After a full argument before us in this Court, we find no ground for changing the opinion.

RICHARD S. WILLIAMS, PRESIDENT OF THE MARKET BANK,

vs.

THE MECHANICS' BANK OF NEW HAVEN.

Where a banking corporation issued a certificate to C., certifying that he had standing to his credit on the books of the bank, ten shares of the capital stock thereof, "which are transferable at the bank, in person or by attorney:" Held, that the words, "transferable at the bank," meant "transferable only at the bank," and also implied that an act of transfer was to be done at the bank, under the cognizance of the officers of the bank.

Held, also, that the transfer of the certificate by C. did not operate as a transfer of the stock, except as against C., although the charter of the bank provided that the stock should be transferable according to such rules as might be established by the directors, and they had established no such rules.

The stock having been attached in the hands of the bank as the stock of C. and sold on execution, and transferred by the bank to the purchaser on such sales: Held, that the bank was not liable for the value of the stock to a party to whom C. had, prior to the attachment, transferred the certificate issued to him, the bank not having been, prior to the attachment, applied to by such party to transfer the stock to him, or notified of his claim.

(Before NELSON and SHIPMAN, JJ., Southern District of New York, 'September 23d, 1862.)

THIS was an action brought to recover the value of ten shares of the capital stock of the defendants, a banking corporation. On the trial, a verdict was rendered for the plaintiff, subject to the opinion of the Court, and the plaintiff now moved for judgment on the verdict. The facts were as follows: On the 18th of May, 1855, George W. Corlies, a resident of the city of New York, was the owner of ten shares of

Williams v. The Mechanics' Bank of New Haven.

the stock of the defendants, and received a certificate therefor from them, in the following words: "Mechanics' Bank, No. 547, Shares 10. This is to certify, that George W. Corlies, of New York, has, at this date, standing to his credit, on the books of this bank, ten shares of the capital stock thereof, which are transferable at the bank, in person or by attorney. John W. Fitch, Cashier. New Haven, May 18, 1855." This certificate continued in Corlies' possession until on or about the 13th of March, 1856, when he effected a loan of money from the Market Bank, in the city of New York, and delivered the certificate in question to the president thereof, as collateral security for the loan, with the following power of attorney attached: "Know all men by these presents, that I, George W. Corlies, for value received, have bargained, sold, assigned and transferred, and by these presents do bargain, sell, assign and transfer, unto Richard S. Williams, President of the Market Bank of the city of New York, ten shares Mechanics' Bank New Haven stock, standing in my name on the books of the said bank, and do hereby constitute and appoint Chester W. Arthur my true and lawful attorney, irrevocable, for me, and in my name and behalf, but to (blank) use, to sell, assign, transfer and set over all or any part of said stock, and, for that purpose, to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney, or my [his] substitute or substitutes shall lawfully do by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the 13th of March, 1856. George W. Corlies. Signed, sealed, &c., R. H. Haydock." Corlies gave his note for the loan, which was for $3,000, payable in thirty days. This note was not paid at maturity, but was renewed from time to time, until August, 1859, when the last renewal fell due, and was protested for non-payment. At the time the loan was obtained, the Market Bank received from Corlies other collaterals, but no question arose out of that circumstance. On the 8th of September, 1859, the plaintiff presented the certificate in question to the